R v Fesus [2017] NSWSC 1422 | Case summary

Supreme Court of NSW|2017-09-13|Before: Johnson J, Wilson J

Judgment

JOHNSON J: The Accused, Steven Frank Fesus, was charged by indictment with the murder of his wife, Jodie Melissa Fesus (hereinafter referred to as "Jodie"), at Mt Warrigal on 11 August 1997.
It was the Crown case that the Accused killed his wife by strangling or choking her in their house at Mt Warrigal and then transported her body to Seven Mile Beach where he buried her in a shallow grave. The Accused denied that he was involved at all in the disappearance or death of his wife.
In advance of closing addresses, I heard submissions as to whether manslaughter ought be left to the jury by way of provocation or unlawful and dangerous act.
Mr Chapple SC, for the Accused, did not seek that either form of manslaughter should be left to the jury in this case (T1431, 1447).
I was satisfied that manslaughter by unlawful and dangerous act should be left to the jury (T1459).
I determined that provocation manslaughter should not be left to the jury in the circumstances of this case and indicated that I would publish my reasons for that ruling at a later time (T1442).
What follows constitutes my reasons for these rulings.

Consideration of Evidence

I keep in mind the two elements of the partial defence of provocation as contained in s.23(2) (see [9] above). Firstly, the act of the Accused causing death must be the result of a loss of self-control on his part that was induced by any conduct of the deceased (including grossly insulting words or gestures) towards or affecting the Accused: s.23(2)(a). It is necessary to consider what the evidence revealed concerning alleged conduct or words of Jodie for the purpose of determining whether there is a foundation for provocation to be left to the jury.
Secondly, the conduct of Jodie must be such as could have induced an ordinary person in the position of the Accused to have so far lost self-control as to form an intent to kill or to inflict grievous bodily harm upon her, whether the conduct of the deceased occurred immediately before the act causing death or at any previous time: s.23(2)(b).
As at 11 August 1997, the Accused was almost 27 years old. Jodie had turned 18 years old in April 1997.
The evidence of Jason and Leanne Nowicki referred to an argument between the Accused and Jodie earlier in the evening of 11 August 1997 about changing a nappy, with Jodie striking a single blow to the Accused in the course of that incident. The Accused's record of interview with police on 26 August 1997 included an assertion that, whilst at the Nowicki residence, Jodie had told him that their infant son was not his child. There was no support in the evidence of Jason and Leanne Nowicki at the trial that words to this effect were spoken in their house. Indeed, the evidence of Jason Nowicki seemed to be to the contrary. Further, when asked about the same event by police in his December 2000 record of interview, the Accused said he could not remember such words being spoken.
In the course of the recorded conversation with the undercover officer on 8 July 2013, the Accused said that he had strangled or choked Jodie following an argument about an undisclosed topic. He stated specifically that the argument was not about either of the children and that any earlier discussion between Jodie and himself concerning the paternity of their infant son was not playing on his mind at the time of the killing.
The essence of what the Accused said to the undercover officer was that he felt frustrated and upset by the fact that he had to undertake domestic tasks concerning the children because Jodie was "lazy". He agreed that he felt "bottled up" about matters of this type. The Accused stated that Jodie was going to take the children and leave him, and that this played on his mind as well at the time he killed Jodie.
The evidence of Leanne Nowicki and Debra Smith was that Jodie was telling each of them that she was unhappy in the relationship and was thinking of leaving the Accused and taking the children with her. It was the Crown case that Jodie said this to the Accused on the evening of 11 August 1997 (as the Accused explained to the undercover officer) and that it was then that he killed his wife.
The threshold for leaving provocation to the jury is relatively low as the reference to Lindsay v The Queen (at [11] above) makes clear. However, there must be a foundation concerning both the subjective and objective features as contained in s.23(2)(a) and (b) of the Act.
The argument at the Nowicki house about changing the baby's nappy does not provide a foundation for provocation, even when accompanied by a blow struck by Jodie to the Accused. In any event, the evidence indicated that things settled down after that argument.
The suggestion that Jodie had asserted that the Accused was not the father of their infant son was tenuous in the extreme. There was no support in the evidence of Jason and Leanne Nowicki that such a statement was made at their house. Indeed, the evidence of Jason Nowicki seemed to be to the contrary. The Accused asserted this in his interview with police on 26 August 1997, but did not repeat the claim when interviewed again by police in December 2000. Further, in his conversation with the undercover officer on 8 July 2013, the Accused stated specifically that thoughts about whether he was the child's father were not playing on his mind on 11 August 1997.
In my view, the tenuous and contradictory material on this aspect was not such as to reach even the low threshold for provocation to be left to the jury.
Beyond that, the Accused appeared to raise generalised grievances about his workload with his young family with criticisms being made of his young wife whom he had married just three months before. Grievances or criticisms about the domestic workload of a spouse do not, in my view, provide an evidentiary foundation with respect to the first leg of provocation under s.23(2)(a) of the Act. Nor does a statement by a wife that she proposed to leave her husband and take the children with her.
The existence of a level of frustration at a person's domestic workload, together with upset at news that the person's spouse proposed to leave and take the children, did not provide a foundation for provocation to be left to the jury having regard to the requirements of s.23(2)(a) Crimes Act 1900.
Even if the matters raised above were sufficient to satisfy the first leg, I was entirely unpersuaded that the conduct of Jodie of this type was capable of providing a proper foundation for the ordinary person test contained in s.23(2)(b) of the Act. In my view, the evidence failed to provide a foundation concerning the possible reaction of the hypothetical ordinary person faced with such circumstances. As in Heron v The Queen (2003) 197 ALR 81; [2003] HCA 17 at 102-103 [90]-[98], having considered evidence relevant to the ordinary person test in s.23(2)(b), I was satisfied that it was not necessary to give any directions on provocation in this case.
Having considered the available evidence in discharge of the Court's obligation to determine whether provocation should be left to the jury, I was satisfied that provocation should not be left to the jury in the circumstances of this case and I so ruled on 13 September 2017 (T1442).

Manslaughter by Unlawful and Dangerous Act

Senior Counsel for the Accused made clear his instructions that manslaughter by unlawful and dangerous act should not be left to the jury (T1447).
The basis upon which this class of manslaughter arose for consideration was the conversation on 8 July 2013 between the undercover officer and the Accused. In the course of that conversation, the Accused said that he had strangled or choked Jodie and had transported her body to the area of Seven Mile Beach where he buried her. In the course of describing what had happened, the Accused said at one point, "It wasn't a struggle or anything" and "I didn't throw her at all. Maybe I hugged her too hard or something that's what I think I did" (Exhibit BV, page 79).
To find the Accused guilty of murder, it was necessary for the jury to be satisfied beyond reasonable doubt that he intended to kill Jodie, or intended to cause her grievous bodily harm or that he acted with reckless indifference to human life in committing the act which caused her death. If the jury was not satisfied beyond reasonable doubt of any of these forms of the mental element for murder, then the question would arise as to whether it was open to the jury, having found the Accused not guilty of murder, to return a verdict of guilty of manslaughter by unlawful and dangerous act.
I was satisfied that it was appropriate in this case to leave manslaughter by unlawful and dangerous act to the jury. Having indicated to counsel that I proposed to take this course, neither the Crown nor Senior Counsel for the Accused sought to make any further submission on the issue (T1459).
It was for these reasons that I determined to leave manslaughter by unlawful and dangerous act to the jury in this trial.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 October 2017

R v Fesus

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